Reading between the lines of the ‘Responsible Resource Development’ rhetoric: the use of omnibus bills to ‘streamline’ Canadian environmental legislation

Abstract

In Canada, the use of omnibus budget bills in recent years has grown substantially. In 2012, it was used twice by the Government of Canada. As a result, a number of substantial changes to environmental legislation were introduced with virtually no debate nor compromise. This situation has been criticized for seriously reducing the credibility of the budget process and the authority of Parliament in Canada, as well as undermining the transparency and accountability of the policy-making process. This paper describes how changes to major policies through the use of omnibus bills (all, arguably, in the name of faster project review decisions) affect not only established environmental protection efforts, but also the public and Aboriginal (First Nations, Inuit and Metis) peoples, particularly in terms of their capacity to effectively participate in resource development.

Keywords::

• CEAA 2012
• omnibus bill
• streamlined EA
• public participation
• Aboriginal peoples
• environmental assessment
• resource development
• Bill C-38
• Bill C-45

Introduction

In 2008, the financial crisis in the world along with the bursting of the credit bubble affected economies worldwide, and in part triggered the global economic recession, which, almost immediately, led governments to ‘fix the economy’ (Elliot 2011). Accordingly, environmental protection [and environmental assessment (EA)] immediately came under fire as a hurdle or perceived barrier to economic growth. As an attempt to reduce environmental safeguards in place, the Government of Canada decided to make use of omnibus bills to introduce changes to current environmental legislation. An omnibus bill is a single document that is accepted or rejected through a single vote by a legislature. Omnibus bills package together several measures into one, covering a number of diverse and often unrelated topics (Goertz 2011). This is the major problem with omnibus bills – voting in favour of the bill, means agreeing with everything in it, and vice versa – as voting on individual issues in the bill is not possible.

Canada has had a positive reputation in international circles regarding its record on environmental protection for a long time. There are recent signs, however, that this reputation is no longer warranted (Kirchhoff et al. 2013), as the Canadian federal government downsizes its public service and cuts heavily into spending levels in many areas of governance, including environmental protection and EA. Bills C-38 and C-45 are the main topics of discussion for this paper. Both budget bills were presented and voted upon in 2012, more than 400 pages long, and both introduced changes to more than 60 federal acts and regulations in Canada (e.g. tax-specific laws, environmental-specific laws and Aboriginal (First Nations/Indian, Inuit and Métis)-specific laws; Government of Canada 2012a, 2012b). Very little information was released prior to the introduction of these bills, and by including so many major policy initiatives, the government precluded ‘substantive policy reviews by the appropriate Parliamentary Committee and by Parliament itself’ (Clark & Devries 2012, p. 1). Moreover, with a majority government in place since 2011, no matter how much outcry from the public and the opposition parties, the current Conservative government had no problems passing both bills through the legislative process in record time, with no public debate about proposed changes and rejected all amendments proposed by the opposition parties (Doelle 2012; Russell 2012; Kirchhoff et al. 2013). In this regard, Clark and Devries (2012) conclude that the use of omnibus bills for the federal budget

… has grown to the point that they seriously undermine the credibility of the budget process and the authority of Parliament. There is a clear lack of transparency and accountability. There is an urgent need to restore the role of Parliament and its committees in assessing, reviewing and approving proposed legislation. Without sufficient information and clear intention of the proposed initiatives, Parliament and its Committees cannot properly assess the budget. Parliamentary debate is stifled, public involvement ignored and the implementation of good public policy prevented. (p. 1)

This paper begins with a brief overview of the recent use of omnibus bills in Canada, and then describes in greater detail how the changes implemented through the introduction of the two most recent omnibus bills (i.e. Bills C-38 and C-45) impacts environmental protection efforts. We then use a hydro-development case study in Ontario, Canada, to illustrate the impact of implemented changes and implications for the public and Aboriginal peoples, as well as environmental protection in Canada.

Bills C-38 and C-45: main changes to environmental legislation

Before the introduction of Bills C-38 and C-45, the government introduced Bill C-9 in 2010, an omnibus budget bill with more than 900 pages. With a minority government at the time, Bill C-9 provides an interesting example of recent Canadian politics, as the opposition parties could have opposed the bill, but this would have triggered federal elections. Given the political climate at the time, the opposition felt that they were not ready for an election, which would likely give the Conservative government a majority. As such, Bill C-9 passed by a ‘vote of 138-126, with 30 Liberal members of parliament absent to ensure the budget survived’ and to avoid elections (Cheadle 2010, p. 1). With the passing of Bill C-9, changes were introduced to the Canadian Environmental Assessment Act (CEAA) to exempt from EA infrastructure projects funded through the federal stimulus package (Government of Canada 2010). However, more substantial changes to CEAA would come through the introduction of Bills C-38 and C-45 in 2012.

In 2011, federal elections were held because opposition parties rejected the government's proposed annual budget. The government then decided to dissolve parliament, after the House of Commons passed a motion of non-confidence against the government. Ironically, the government actually increased their seat count from a minority to a majority government, as a result of the federal elections (Parliament of Canada 2013). One of the first measures by the new majority government was to stop meeting with the Regulatory Advisory Committee, which is responsible for, among other things, advising the government on issues related to how to improve EA in Canada (Gibson 2012). Then the mandatory CEAA review only began 1 year after its mandated 7-year review. The House of Commons Standing Committee began the CEAA review, and expected it to take months, but formal parliamentary committee hearings were held for only 10 days and before all invited and registered intervenors had a chance to participate in the review, the review was ended (Doelle 2012). The opposition parties tried to extend the hearings with no success and the Committee filed their report in early 2012 (Doelle 2012).

In April 2012, the Government of Canada introduced Bill C-38 – this action explained why the government ended the CEAA review so quickly – it would have been awkward to have an ongoing CEAA review while the government presented a massive omnibus bill introducing changes to the CEAA. Now with a majority, the Conservative government had no trouble getting Bill C-38 passed without any amendments, even though the bill made drastic changes to federal environmental legislation, including CEAA, the Fisheries Act, Species at Risk Act (SARA), and a number of other laws and regulations (Government of Canada 2012a).

Bill C-38 is an omnibus bill, entitled a budget bill, with much included legislation that has no relation to the federal budget. The bill was of more than 400 pages long, with very little time for review, and made substantial changes to more than 70 acts and regulations at the federal level (Government of Canada 2012a). A number of critics attributed this approach as a more strategic way to get initiatives approved, because with a majority government, this approach offered very few openings for effective opposition (Doelle 2012; Gibson 2012).

Other substantial changes introduced through Bill C-38 included the elimination of the National Round Table on the Economy and the Environment, an arms-length agency whose purpose was ‘to play the role of catalyst in identifying, explaining and promoting, in all sectors of Canadian society and in all regions of Canada, principles and practices of sustainable development.’ (National Round Table on the Environment and the Economy 2013, p. 1). In addition, Bill C-38 repealed requirements to report on climate change initiatives, by repealing the Kyoto Implementation Act, a federal statute that required the government to develop a plan for meeting greenhouse gas (GHG) reduction targets and mandated the Commissioner of the Environment and Sustainable Development to report annually on results. The latter is not surprising, since the Canadian government withdrew from the Kyoto Protocol in 2006 (Kennedy 2011) and has been a clear advocate of the Alberta Oil sands, which are responsible for 7% of Canada's total GHG emissions and the fastest growing source of GHG emissions in the country (Pembina Institute 2013). While the current government claims ‘leadership’ on climate change action, it is currently ‘on pace to achieve only half of its 2020 promise to reduce GHGs by 17 per cent below 2005 levels’ (Cheadle 2013, p. 1), and 75% of these reductions are attributed to provincial actions, not federal (National Round Table on the Environment and the Economy 2012).

In October 2012, Bill C-45, another omnibus bill, was introduced, again having more than 400 pages in length, and there was only two months to have it rushed through the federal legislative process. More than 60 acts and regulations were affected by changes, including the Indian Act and the Navigable Waters Protection Act (NWPA) (Government of Canada 2012b). Indeed, Bills C-38 and C-45 affected numerous environmental laws and regulations in Canada, some of which are presented in Table 1.

Table 1 Main changes to selected environmental legislation affected by Bills C-38 and C-45.

Legislation	Before omnibus bills	After omnibus bills
CEAA	Narrow definition of environment (i.e. biophysical aspects)All projects require EAs unless excluded from listPublic participation opportunities at discrete points in the EA process	Narrower definition of environment (i.e. only federally mandated biophysical aspects)No projects require an EA, unless included in listPublic participation opportunities still at discrete points in the EA process, but reduced number of EAs means reduced opportunities for public participation
Fisheries Act	Prohibited the HADD of all fish habitat	Prohibits only serious harm to commercial, recreational and Aboriginal fisheries (instead of fish habitat)
SARA	Time limitations on permits and agreements allowing activities that affect species at risk or their habitat (restricted to 3 and 5 years, respectively)Pipeline projects required to consider impacts on habitat of species at risk	Time limitations removed, so companies will not have to renew permits on projects threatening critical habitatPipeline projects no longer required to consider impacts on habitat of species at risk (National Energy Board as the responsible authority of the EA process)
NWPA	All Canadian waterways protected (∼40,000 lakes and more than 2 million rivers)	New list of protected water bodies (3 oceans, 94 lakes and 62 rivers); therefore, 99% of waterways in Canada lost protectionAlbany and Attawapiskat rivers not included in the list of protected water bodies
Indian Act	Under the old Indian Act, a band council needs the support of a majority of community members to fully surrender reserve lands or partially surrender them in order to enter into lease agreements	With the changes, Band councils now only need a simple majority from a vote, regardless of how many people show up to cast their ballot

Sources: CEAA, 2012; Doelle, 2012; Fisheries Act, 1985; Gibson, 2012; Government of Canada, 2012a; Government of Canada, 2012b; Indian Act, 1985; NWPA, 1985; SARA, 2002.

Canadian Environmental Assessment Act

The impact of the CEAA 2012 on Canada as a whole has been well described by Gibson (2012) and Doelle (2012). As such, we provide a summary of the main changes, which are considered the most drastic ones. While the definition of environment included in the CEAA since its emergence (before Bills C-38 and C-45) has been characterized as being narrow, because of the focus on biophysical effects only, the new act changes the definition to make it even more restricted in scope (Doelle 2012; Gibson 2012). For example, the definition of environmental effect is now limited to changes to a very small number of environmental components (biophysical effects on fish and fish habitat, aquatic life and migratory birds, effects on federal lands and Aboriginal communities, and transboundary effects), plus other components of the environment to be set out in Schedule 2 (CEAA 2012). At the time of writing, Schedule 2 has not been published since the introduction of CEAA 2012 in July of 2012.

In addition, before the changes introduced through Bills C-38 and C-45, all undertakings were required to undergo an EA unless the specific undertaking was excluded from assessment (i.e. Exclusion list). With the changes, this ‘triggering’ process has basically been reversed; no undertaking requires an EA unless explicitly included in a list of designated projects (Regulations Designating Physical Activities, 2012). Changes to this project list were introduced in October 2013 and to further reduce the list of projects that require a federal EA (Massicotte & Farmer 2013). As a result, the new requirement drastically reduces the number of projects that undergo a federal EA. More than 95% of projects that required an EA under the old CEAA – ∼6000 EAs per year – will now be exempt from it, significantly reducing the number of EAs conducted from the thousands per year to less than a hundred (Walton 2012). In fact, in the first year that CEAA 2012 was in force, only 29 EAs were initiated (Massicotte & Farmer 2013).

Almost 3000 ongoing EAs were cancelled immediately after CEAA 2012 came into force (CEAA 2013). Even if a project is included on the Physical Activities list, an EA might not be required, since the Canadian Environmental Assessment Agency will have the discretion to decide whether the project requires or does not require an EA (CEAA 2012). If it is decided that an EA is required, then the responsibility for making a decision as to what constitutes ‘significant impact’ will be at the discretion of the Minister of Environment for review panels. Moreover, if it is concluded that there are significant impacts associated with the proposed project, the Governor in Council has discretion to determine whether adverse effects are ‘justified under the circumstances’ (CEAA 2012). However, relevant circumstances and criteria for this determination are not provided in the CEAA 2012, leaving more openings for discretionary powers and making the EA process less predictable.

Furthermore, meaningful public and Aboriginal involvement in the EA process has been greatly affected by the implemented changes. The reduction in numbers of assessed undertakings means fewer EAs (i.e. fewer projects required to conduct an EA process), which in turn means fewer opportunities for public input through the EA process. There is also the issue of tighter timelines, particularly as it relates to EAs conducted by review panels (one of the two types of EA under the CEAA 2012 and the most rigorous one of the two). Review panels now have an overall timeline of 2 years to conclude the assessment review (CEAA 2012). As such, there are concerns regarding limiting public access to the review panel in order to meet imposed timelines, since under the CEAA 2012, panels have the responsibility to determine who is an ‘interested party’. The CEAA 2012 defines ‘interested party’ as a ‘person [who] is directly affected by the carrying out of the designated project, or a person [who] has relevant information or expertise’ (CEAA 2012, s. 2(2)). The result is additional discretion being introduced to the federal EA process for panels, as the panel decides who is directly affected by proposed undertakings or who has relevant information and expertise about the proposed project. This situation ends up putting the onus on members of the public to convince the panel that they are affected enough by the undertaking, which in turn undermines public trust and the legitimacy and openness of the federal EA process.

In addition, the new triggering system excludes the public from the early stages of project planning. As argued by Doelle (2012),

By starting the CEAA 2012 process with the registration document filed by the proponent that will seek to convince federal decision makers that the project does not warrant an EA, the proponent is encouraged to complete and defend the project design before the EA process starts. (p. 14)

Therefore, this approach essentially reduces opportunities for meaningful public and Aboriginal participation by excluding these groups from the early project planning and design process. While the above represents only a summary of the main changes associated with the CEAA 2012, these changes are substantial, particularly in terms of reducing the scope of EA at the federal level in Canada, as well as reducing the openness of the federal EA process.

The changes also elevate the potential for litigation, which would greatly increase timelines for completion of these reviews if project reviews end up in court. Concerns relate to, among other things, changes being retroactively applied to ongoing reviews, literally changing the rules of the game part-way-through the EA process (i.e. ongoing EAs having obligations reduced in the middle of the EA process), reducing the scope of the assessment, increasing ministerial discretionary powers and restricting public participation opportunities (Gibson 2012; Kirchhoff et al. 2013). In addition, the changes to the CEAA and other established environmental legislation introduced though Bills C-38 and C-45 are so substantial that the potential for legal action (due in part to a lack of public trust from affected/interested parties), is also increased. This could greatly affect the review process of proposed undertakings in terms of process delays, increased inefficiencies and a less predictable review process. But what is even more astonishing is that most of the recent changes to the federal EA law in Canada go against what is suggested in the international literature about effective EAs and principles for best practices (International Association for Impact Assessment and Institute of Environmental Assessment [IAIA and IEA] 1999; André et al. 2006). The following are some examples: early triggering rather than a late, discretionary triggering process; inclusion of all projects with potential for environmental impacts rather than narrowing EA application for the sake of an ‘efficient’ process at the expense of EA effectiveness; more effective meaningful public engagement rather than reduced opportunities for public involvement; and better inter-jurisdictional cooperation rather than rejecting the concept of harmonization through the use of process substitution where only one jurisdiction gets involved in the EA process.

Fisheries Act

Changes to the Fisheries Act (1985) introduced through Bill C-38 have been criticized quite substantially for weakening fish habitat protection (Casselman 2013; Hutchings and Post 2013; Kilian 2013). Section 35 of the act, which prohibited the harmful alteration, disruption or destruction (HADD) of all fish habitat, has been repealed. With proposed changes, the new Section 35 prohibits only serious harm to ‘commercial, recreational and Aboriginal fisheries’, instead of fish habitat. In addition, only subsistence or licensed Aboriginal fisheries are protected. Serious harm is defined as the ‘death of fish’ or any permanent alteration to, or destruction of fish habitat (Government of Canada 2012a, Subsection 132(4)). However, arguably, for harm to cause the death of fish in a fishery, it would potentially be ecologically catastrophic. Therefore, much depends on how serious harm to a fishery will be interpreted. How many fish need to die in a fishery to be considered ‘serious harm’? Only a few or the whole fishery? None of this is specified with the changes introduced through Bill C-38.

Essentially, these changes significantly weaken Section 35 of the Fisheries Act and allow delegation of fish habitat protection, pollution prevention and fisheries management to the provinces and territories through amendments to Section 4.1 of the act. Another amendment to the Fisheries Act grants powers to Cabinet to exempt fisheries from the definition of Aboriginal, recreational or commercial fisheries by regulation, which results in more discretionary powers to Cabinet (Government of Canada 2012a). In addition, there was no public or Aboriginal consultation on the changes to the Fisheries Act made as a result of Bill C-38, or the additional changes proposed in Bill C-45, which further highlights the lack of openness and transparency associated with the introduction of these two omnibus bills in 2012.

Navigable Waters Protection Act

The NWPA (1985), one of Canada's oldest federal laws, has also been affected by the changes introduced through the omnibus bills, and, in this case, highlights the government's clear intent to change the focus of the act. Now called the Navigation Protection Act, the amendments make it clear that the focus of the act is on the protection of navigation, as opposed to the protection of navigable waters. But changing the title was not the biggest change. Appendix A of the new act contains a new list of protected water bodies including 3 oceans, 94 lakes and 62 rivers (NWPA 1985, Appendix A); while previously, 40,000 lakes and more than 2 million rivers were protected under this act. As a result, 99% of Canada's waterways lost their protection for navigation. And for the present study, it is interesting to note that two major rivers in northern Ontario have not been included in the new list (Table 1). According to Appendix A of the new NWPA, the Albany River and the Attawapiskat River are not protected. This is of great concern, as both rivers are close to the proposed developments in the so called Ring of Fire1, and are of great importance to a number of different First Nation communities in northern Ontario. As was the case with amendments to other federal acts, changes to the NWPA were introduced with no consultation with Aboriginal communities.

Species at Risk Act

In relation to the SARA (2002), Bill C-38 removes the time limitations on permits and agreements allowing activities that affect species at risk or their habitat. As a result, proponents will not have to renew permits on projects threatening critical habitat, which used to be restricted to 3 and 5 years, respectively. In addition, Bill C-38 exempts the National Energy Board (one of the three responsible authorities involved with federal EAs under the CEAA 2012), when reviewing proposed pipeline projects, from a requirement in the SARA to consider and seek to minimize impacts on the habitat of species at risk (David Suzuki Foundation 2012). The National Energy Board is responsible for reviewing pipeline projects at the federal level, so in essence, all EAs for these types of projects are exempted from taking into consideration the SARA.

Indian Act

While this is not an act specifically related to the environment, implemented changes affect not only Aboriginal governance but also indirectly affects the environment, as Bill C-45 introduced changes to how surrendering of reserve lands2 for development purposes occurs. The new section on surrendering of reserve lands allows First Nations to either fully surrender reserve lands or partially surrender them in order to enter into lease agreements. Under the old Indian Act, a Band Council (locally-elected government) needed the support of a majority of community members to do either one. With the changes, Band Councils would only need a simple majority from a vote, regardless of how many people show up to cast their ballot (Indian Act 1985, Section 39). There are concerns about lowering the bar for community approval on something that could have a long-term environmental impact on reserve lands, especially if a Band/First Nation enters into a long-term lease agreement. The main concern regards issues of accountability and transparency. For example, imagine 20 members voting on a potential new mine when the Band has a population of 900. How representative are these voters of the community as a whole? With the new changes, this is a possibility. In addition, there are concerns that the Government of Canada is altering the law governing reserve lands and surrenders without consulting with Aboriginal peoples, despite the long-term impact. First Nation communities were only informed of these changes to the Indian Act a few days before Bill C-45 was introduced (APTN National News 2012). Therefore, once again, there was no consultation with Aboriginal peoples in general about the proposed changes.

Resource development, EA and aboriginal peoples

Historically, there have been two somewhat competing expectations about EA: an environmental management instrument that is (a) effective in addressing environmental concerns of development proposals, which could contribute to sustainability and (b) efficient in achieving its goals and delivering its outcomes. Streamlining EA has become the ‘flavour of the month’ since the Government of Canada began its efforts to streamline the federal EA system (see Kirchhoff et al. 2013), which essentially focused on making EAs more efficient by narrowing EA application and reducing assessment obligations and federal involvement, without paying attention to how effectiveness would be affected; this resulted in the cancellation of nearly 3000 ongoing EAs. Under the banner of ‘Responsible Resource Development’, the Government of Canada is spending millions of dollars in advertising (Cheadle 2013; De Souza 2013) to portray these recent changes to environmental legislation as being positive.

The Canadian Economic Action Plan (EAP) can also be seen as the driving force behind the introduction of substantial changes to so many different acts and regulations through Bills C-38 and C-45. The Canadian EAP (2012, p. 1) is based on four key themes:

• Making the review process for major projects more predictable and timely.

• Reducing duplication in the review process.

• Strengthening environmental protection.

• Enhancing consultations with Aboriginal peoples.

Making the review process for major projects more predictable and timely

The intent to make the federal EA process more predictable and timely comes mainly through changes that stipulate tighter timelines and reducing the number of projects that require a federal EA. However, many changes actually introduce more discretionary powers in the process, which results in reducing the predictability and increasing uncertainty associated with the EA process. Examples discussed in this paper include a new discretionary triggering of the EA process, potentially opening up litigation and associated review process delays, and discretion to decide what is a significant impact and whether a significant impact is ‘justified under the circumstances’, even though no clear guidelines exist to make these decisions. In addition, while reducing the number of assessments might speed up the review process of the proposed projects, there is potential for significant cumulative effects – related to those newly exempted projects – to be now overlooked. The result is an EA process that is more uncertain, less predictable, less effective in protecting the environment and potentially taking more time to complete project reviews.

Reducing duplication in the review process

One main governmental focus associated with the recent changes to legislation discussed in this paper is the attempt to reduce duplication in the review process by reducing federal oversight of EA. However, duplication has not been an issue in Canada since agreements to harmonize the EA process by federal and provincial governments have been signed and additional legislation adopted, to address the process of duplication. Environment Canada officials, for example, have informed the Federal Minister of Environment (prior to the implemented changes through Bills C-38 and C-45) that the ‘government had already adopted legislation that had effectively addressed duplication in federal and provincial environmental assessments’ and that this ‘eliminated the need to further narrow the federal government's authority to evaluate projects’ (De Souza 2012, p. 1).

Nonetheless, the current Government of Canada decided to tackle the issue of duplication in the EA process mainly by reducing federal involvement through what is called ‘process substitution’, that is, every time a project triggers both federal and provincial EAs, there is the possibility that only the provincial process will be followed. The Federal Minister of Environment will be the person responsible for deciding whether the provincial EA is considered an ‘appropriate substitute’ (CEAA 2012). If it is considered appropriate, then the federal EA would not apply, just the provincial EA. This raises some consistency issues, since provincial EAs across Canada vary substantially in terms of application, scope and the process as a whole (Carver et al. 2010). Moreover, CEAA 2012 does not bring any criteria to decide on what is considered an appropriate substitute, leaving more openings for discretionary powers. This goes against the claim that these changes are meant to make the review process more predictable.

In this respect, Doelle (2012) contends that

CEAA 2012 makes extraordinary efforts to ensure that the federal process will not apply whenever there is a concern about overlap with a provincial or other process. The approach in CEAA 2012 involves picking one jurisdiction to carry out an EA process, with no direct involvement by the other level of government and few other safeguards to ensure that the EA will provide a solid basis for decision-making at all relevant levels of government. (p. 13)

Strengthening environmental protection

While strengthening environmental protection is one of the focuses of the Canadian EAP and associated Responsible Resource Development initiative, the changes introduced through Bills C-38 and C-45 to Canadian legislation, such as, the Fisheries Act, NWPA and SARA demonstrate the opposite. As discussed above, implemented amendments can be said to have weakened environmental protection, rather than strengthened it. Examples include exempting pipeline projects from considering and minimizing impacts on the habitat of species at risk, greatly reducing the scope of the NWPA, facilitating the surrendering of reserve lands process for development purposes in the Indian Act, weakening the habitat protection provisions in the Fisheries Act and substantially reducing the number of projects that require an EA under the CEAA 2012.

Enhancing consultations with Aboriginal peoples

The effects of Bills C-38 and C-45 on Aboriginal rights and way of life are undeniable. While the CEAA 2012 has as one of its purposes to ‘promote communication and cooperation with Aboriginal peoples’ (CEAA 2012, s. 4(1)(d)), by reducing the number of EAs conducted (i.e. exempting more projects from EA obligations), it is obvious that opportunities for Aboriginal (and non-Aboriginal) participation are also reduced. In addition, by narrowing the scope of EAs and reducing federal government involvement in EAs, it becomes more difficult to fulfil the Canadian government's legal duty to consult Aboriginal communities on proposed projects that could negatively affect their rights and way of life (Gardner et al. 2012).

Process substitution reduces the potential for meaningful participation. When the federal EA process does not apply, federal participant funding is also not made available. Participant funding3 is seen as an essential aspect of meaningful public participation and it relates to the basic disproportion of resources between proponents and the public, which tries to better level the playing field or balance this difference by providing funding to the public to effectively and meaningfully participate at all EA stages. This is especially important for Aboriginal communities (and the presented case study), who usually lack the proper resources to effectively participate in the review process. Given that most Canadian provinces have no provisions for participant funding, meaningful Aboriginal involvement also becomes less likely.

As can be seen, none of the four themes/goals of the Canadian EAP can be achieved through the implemented changes thus far. While these four laudable goals are being championed, what can be seen in practice is the opposite. The next section presents a hydro development project that is used to illustrate the implications of the recent changes introduced through Omnibus Bills C-38 and C-45.

Case study

The proposed hydro project is a joint-venture partnership of Northland Power Inc. (Northland) and Constance Lake First Nation, who are proposing to jointly construct, own and operate hydroelectric facilities on the Kabinakagami River, ∼40 km west of Hearst, Ontario (Hatch 2012). The project, known as the Kabinakagami River Project, consists of four run-of-river hydroelectric generating stations, each with a nominal capacity of 6.5 MW, for a total project capacity of 26 MW.

The Project will be located on the Kabinakagami River, from ∼29–37 river km downstream (north) from Highway 11 (see Figure 1), and is to be situated on provincial Crown land, ∼10 km west from the Fushimi Lake Provincial Park. Table 2 below provides the geographic coordinates for the four proposed sites, which are located within the Cochrane District in Ontario (Hatch 2011)

Figure 1 Study area. Source: Hatch (2012, Figure 1-1).

Table 2 Geographic coordinates of proposed sites.

		Geographic coordinates
Site name	MNR waterpower site number	Latitude (d, m, s)	Longitude (d, m, s)	Drainage area (km^2)
Neeskah	WSR-2008-14	49° 59 ft 17.761 in.	84° 1 ft 21.613 in.	4600
Peeshoo	WSR-2008-15	49° 58 ft 22.693 in.	84° 0 ft 18.704 in.	4600
Wahpeestan	WSR-2008-16	49° 48 ft 40.667 in.	78° 27 ft 4.139 in.	4635
Wopoose	WSR-2008-17	49° 55 ft 1.648 in.	84° 1 ft 12.902 in.	4640

Source: Hatch (2011, p. 3-1).

The primary purpose of the project is to generate hydro-electrical power and sell it to the provincial electrical grid under the feed-in-tariff contract with the Ontario Power Authority in order to derive financial benefits for Constance Lake First Nation and Northland Power, Inc. (Hatch 2012, p. 1–9).

Regulatory requirements

EA of the Kabinakagami River project is ongoing and began in 2011, and it was required to meet the requirements of four environmental review and approval agencies:

• the CEAA – screening EA,

• the provincial Class EA for Waterpower projects (Ontario Waterpower Association [OWA] 2012),

• the provincial Class EA for Ministry of Natural Resources (MNR), Resource Stewardship and Facility Development Projects for the 44-kV transmission line option on Crown land and

• a greenfield water management plan for the four sites, under the Lakes and Rivers Improvement Act as part of the process to meet the key steps in the Water Management Planning Guideline for waterpower.

For the purposes of this paper, we will focus our attention on the first two assessment processes (i.e. federal EA under the CEAA and provincial Class EA under the Ontario EA Act), and discuss how changes proposed by Bills C-38 and C-45 have affected the review process of this hydro project.

Federal EA process

The project was subject to a federal screening-level EA under the CEAA as a result of the need to acquire certain federal approvals for the project. A CEAA screening had been triggered for this project as a result of the need for the following federal approvals:

• Authorization for the HADD of fish habitat under Section 35(2) of the Fisheries Act.

• Authorization for the destruction of fish by means other than fishing under Section 32 of the Fisheries Act.

• Approval under Sections 5(1) and 5(2) of the NWPA.

With the changes to the CEAA in 2012, the federal EA process for this project was cancelled (CEAA 2013). The implications of this cancellation are discussed below.

Ontario EA processes

The project was also subject to a provincial class EA for Waterpower Projects (OWA 2012), which is an approved class EA under the Ontario EA Act. A class EA is a self-assessment, streamlined EA process that is applied to a group of projects that are carried out routinely and have predictable and manageable environmental effects (MOE 2013) and is the least rigorous type of EA under the Ontario EA Act. The Kabinakagami River Hydro project is considered to be a ‘new project on an unmanaged waterway’ and must be assessed in accordance with the class EA requirements for such a designation (OWA 2012). The proponent makes it clear, however, that the assessment and preparation of the Environmental Report follows the OWA class EA (OWA 2011), while also incorporating the requirements of the federal CEAA EA process (Hatch 2012, p. 1–16). However, the federal EA for this project was cancelled as a result of the recent changes to the CEAA. Implications of this cancellation are discussed below.

Methods

Case study research (Yin 2003) using multiple methods was utilized to investigate the EA process of the Kabinakagami River Hydro project. The methodological approach incorporated participatory action (PAR) research and the use of a case study. ‘PAR’ is a generic term that can refer to several related streams of collaborative forms of research, including PAR (Whyte 1991), Action Science (Argyris & Schon 1974; Argyris & Schon 1978; Schon 1983) and Co-operative Inquiry (Reason 1988; Reason 1994; Reason & Heron 1995), among others. For the purposes of this research, the focus is primarily on Whyte's PAR (Whyte 1991):

In PAR, some of the people in the organization or community under study participate actively with the professional researcher throughout the research process from the initial design to the final presentation of results and discussion of their action implications. (p. 20)

Case studies involve the exploration of a single entity or phenomenon bounded by an event and process. As a research strategy, case studies are used in many situations to ‘improve our knowledge of individual, group, organizational, social, political and related phenomena’ (Yin 2003, p. 1). The need for case studies arises out of the desire to understand complex social phenomena; a case study allows investigators to retain the holistic and meaningful characteristics of real-life events, such as organizational and managerial processes (Yin 2003). Data used for the purposes of this research were obtained from and verified using the following:

• Reviews of the literature – academic journals, books and research reports.

• Analysis/review of the project's EA documents [Project Description – Hatch (2011), Draft Environmental Report – Hatch (2012) and Final Environmental Report – Hatch (2013)].

• Analysis of relevant government policy documents.

• Participant observation/workshops.

The purpose of a literature review is to define problems, assess previous work, present relevant background information, and identify tensions and areas of consensus (McCracken 1988). For this study, literature review was vital for developing the contextual information relevant to the issues discussed in this paper and the case study chosen for illustration purposes. EA documents specific to the Kabinakagami River Hydro project were used to gather and verify information about the chosen case study. The analysis of policy documents was used to verify details regarding how changes to a number of environmental legislation affect the review process of new undertakings, in particular the hydro development on the Kabinakagami River. In addition, participant observation was used to gather information from a community perspective. Participant observers generally gather data through several means, including casual conversations and in-depth, informal and unstructured interviews, as well as formally structured interviews (Jorgensen 1989). In this case, we were involved in two Chief and Council meetings as well as two community meetings open to the public in Fort Albany First Nation, on two separate occasions (May 2012 and February 2013). During each of these meetings, the research team gathered qualitative data for the case study through presentations and casual conversations with meeting attendees. In all cases, one member of the research team kept detailed notes of the content and context (e.g. group dynamics, non-verbal responses) of meetings. Collected data were analysed qualitatively to discover patterns, identify recurring themes, glean insight and develop meaningful conclusions regarding the implications of changes to legislation introduced through Bills C-38 and C-45.

Findings

Many deficiencies in the EA study were identified prior to the proposed changes to environmental legislation introduced though Bills C-38 and C-45. These relate to hydrology predictions being based on out-of-date data for the Kabinakagami River, the lack of fish passage to allow Lake Sturgeon to migrate upstream and downstream of the dam, no modelling to justify the proponent's claim that impacts on water temperature will be negligible, poor assessment of cumulative effects and an overuse of ‘professional judgement’ as the main source of evidence for justifying non-significance of impacts associated with the hydro project (Kirchhoff et al. 2012).

While these more technical issues are important and need to be addressed, it is beyond the scope of this paper to investigate them in more detail. Rather, the main purpose of the paper is to address the implications of the changes introduced through Bills C-38 and C-45 and how these affect the particular case study chosen. As such, the biggest implication in relation to the Kabinakagami River hydro project is that the federal EA was cancelled once CEAA 2012 came into force, as a result of the amendments introduced through Bill C-38. Major implications of cancelling this federal review process include:

• Reduced public participation (Aboriginal and non-Aboriginal) opportunities and no participant funding available, since Ontario has no provisions for participant funding.

• No requirement for cumulative effects assessment.

• No involvement from federal agencies and use of their specific expertise.

• No recourse to bump up the EA to a more detailed federal review (i.e. Comprehensive Study EA or Review Panel).

The Kabinakagami River Hydro project previously required the EA process at both the federal and provincial levels. With the cancellation of the federal EA process, this hydro project will be solely reviewed through the Ontario class EA process, the least rigorous form of assessment under the Ontario EA Act. In addition, there has been criticism about transferring the class EA process (commonly used in southern Ontario) to northern Ontario regarding its appropriateness given such contextual differences between the north and the south (McEachren et al. 2011). Although the hydro development occurs outside the boundaries of the Far North of Ontario, as set in the Far North Act (2010), the environmental repercussions will be felt in the Far North region, as the Albany River drains into James Bay.

While the federal EA process requires the assessment of cumulative effects, the Ontario EA process does not. And cumulative effects are probably the most important ones related to the presented case study. While the effects of a single project may be limited, the combined effects of multiple similar projects or related changes are of much greater consequence. In a nutshell, cumulative effects occur when the individual effects of many actions combine over time and/or space. In the context of northern Ontario (a relatively pristine area), this is of great importance; because of recent identified resource development opportunities (e.g. Ring of Fire), there will inevitably be enormous demand for energy for the advance of these resource development opportunities. In turn, it is safe to assume that other similar projects will be pursued in the region, increasing the likelihood of cumulative effects causing negative effects not identified and addressed during the assessment process. Therefore, removing the requirement to perform a cumulative effects assessment greatly undermines the proper identification of potential impacts on the health and livelihoods of local First Nation communities and reduces concrete opportunities for environmental protection.

In addition, with the cancellation of the federal EA process for initiatives such as the Kabinakagami River Hydro project, project review will now occur with no involvement of federal agencies, losing the important role federal agencies would have played in the review process, given their unique expertise, which could have improved the final ‘accepted’ project. Relying on the Ontario EA process only also removes the possibility of ‘bumping-up’ the EA to a more detailed, rigorous process, an important provision that is part of the federal EA process (and other EA processes in Canada). And finally, the cancellation of the federal EA process reduces opportunities for public participation, since there will be no provisions for federal participant funding, and Ontario has no provisions for this type of assistance. As was discussed above, participant funding is seen as an essential aspect of meaningful public participation and this is particularly relevant for Aboriginal communities lacking the appropriate resources to effectively and meaningfully participate in the EA process. Essentially, this means that Aboriginal communities living in proximity to identified development opportunities (i.e. Ring of Fire) have been negatively affected by the changes introduced through Bills C-38 and C-45. By reducing the application of EAs and reducing federal government involvement in EAs, the Canadian government's legal duty to consult Aboriginal communities on proposed projects that could negatively affect their rights and way of life is undermined.

Conclusions and implications

Worldwide, many governments have recently engaged in weakening EA obligations (i.e. streamlining EA) in response to concerns over the costs and potential for delays to economic development, especially in times of economic recession (Morgan 2012). As concluded by Bond et al. (2014, p. 52),

there appears to have clear and ample evidence from Canada, the UK and Western Australia to conclude that governments have generally been aiming to streamline impact assessment in the last five years, and this has been associated with some reduction of the potential benefits of EIA.

We provide further evidence to this situation in the context of Canada, and the recent changes to environmental legislation, including EA legislation.

Bills C-38 and C-45 introduced substantial changes to the federal environmental regulatory approach in Canada. As has been discussed above, these changes have extensive implications not only for environmental protection in Canada, but also for Aboriginal peoples, particularly in terms of their capacity to participate in the assessment process of new resource extraction undertakings that affect their traditional lands. The Kabinakagami River Hydro project case study illustrates this situation, as the assessment and review process of this project is undermined by the implemented changes through Bills C-38 and C-45 (i.e. no need to assess cumulative effects; no involvement from federal agencies and use of their expertise; no opportunity to bump up the EA to a more detailed federal review process; and reduced public participation opportunities, removing the availability of participant funding to foster meaningful participation in the EA process). This is one of many concrete examples of projects (i.e. one of the almost 3000 EAs cancelled in 2012) that had their assessment and review processes weakened as a result of the retrograde changes to the federal EA process in Canada through the use of omnibus bills and the application of the Responsible Resource Development rhetoric.

Canada's EAP presents a picture that is very different from what actually is happening when the details are examined. The EAP is described as having the intent to streamline the review process of major undertakings ‘by ensuring more predictable and timely reviews, reducing duplication, strengthening environmental protection and enhancing consultations with Aboriginal peoples’ (Canada's EAP 2012, p. 1). However, the reality is the opposite.

The implemented changes will very likely not ensure more predictable and timely reviews. New additional discretionary powers by the federal Minister of Environment, and also the new screening system that is not based on clear criteria (rather a case-by-case screening that is likely decided behind closed doors) will likely add to the unpredictability and uncertainties associated with which projects actually require a thorough assessment process. The changes also elevate the potential for litigation, which would greatly increase timelines for completion of these reviews if project reviews end up in court. In addition, we also presented a number of important federal environmental statutes that were weakened including changes to the Indian Act, Fisheries Act, the NWPA and the SARA, which go against the idea of strengthening environmental protection. All these changes greatly affect all Canadians, and bring the issue of intergenerational equity, since future generations are not been properly represented in the process, and are likely the ones that will be most affected by the discussed implemented changes to long established environmental safeguards in Canada. Therefore, the Government of Canada engaged in these major changes to many federal environmental statutes in the name of efficiency and faster project review decisions without properly addressing the environmental and social costs of weakening these established safeguards, while undermining the potential mutual benefits associated with them.

The claim by the Government of Canada that it wants to enhance consultation with Aboriginal peoples appears to be completely spurious. It began with the introduction of both omnibus bills without any consultation with Aboriginal peoples, even though implemented changes greatly affect their rights, livelihoods and ability to participate in these decision-making processes. For example, with the changes introduced to the CEAA, there will be an extreme reduction in the number of projects assessed at the federal level. More than an estimated 6000 assessments per year will not happen, and the number of assessed projects will go down to less than 100 federal EAs per year. Streamlined EA regimes, by exempting more undertakings, may drastically reduce opportunities for public and Aboriginal meaningful participation in Canada, which have daunting implications given Canada's fiduciary duty to consult, and their fiduciary responsibility to health and well-being of Aboriginal people. In addition, this situation affects how Canada effectively applies the concept of free, prior and informed consent (FPIC), promoted by the United Nations (UNDRIP 2008). Given Canada's unique constitutional relationship with Aboriginal people and the jurisdiction of governments in any resource development decisions, there is a need for ‘Responsible Resource Development’ that involves FPIC.

While EA has been one of the most important instruments to provide a venue for meaningful public and Aboriginal consultation (Diduck et al. 2007; Booth & Skelton 2011), with these changes, opportunities for Aboriginal involvement have been and will be greatly reduced. Fewer projects being assessed through a formal EA means fewer opportunities for Aboriginal input. From an Aboriginal perspective, these changes represent a continued colonial action by the Government of Canada, imposing an economic-focused resource extraction agenda with little regard for Aboriginal input and consent in decision-making that affects their rights and livelihoods. In addition, there is also the issue of downloading responsibility for EAs from the federal to the provincial level through what is called process substitution. When this happens, federal participant funding will not be made available. This means that Aboriginal peoples again will be greatly impacted in a negative way, given their lack of resources to participate in these project review processes.

Arguably, the inclusion of strategic environmental assessment (SEA) as part of the EA regime has the potential to fill in the gaps left by a streamlined federal EA process in Canada. As a participative process, SEA emerged as a promising means of dealing directly with strategic issues in a way that has the advantages of project EA processes (e.g. integration of environmental concerns in decision-making, a more transparent, open and participative process and so on), but also has the necessary scope and mandate to influence higher level decisions (i.e. plans or programmes that set the stage for subsequent projects) (Benevides et al. 2009). Therefore, SEA could facilitate Aboriginal peoples participation and influence in strategic initiatives in resource development that shape and guide project-level assessment, providing a means through which Aboriginal peoples could influence the kinds of projects that should be pursued, not just the details after designed projects are already under consideration.

In conclusion, while these governmental initiatives are positively worded and presented to the public (with millions of taxpayer dollars being spent on advertising campaigns), in practice, what can be seen is that there is nothing ‘responsible’ about Responsible Resource Development. Our analysis indicates that a number of these governmental initiatives serve to further weaken Aboriginals’ capacities to participate in the resource development review processes, increase discretionary powers that further reduce the predictability of the review process and remove environmental protection that have been in place to safeguard the health and livelihood of all Canadians (Aboriginal and non-Aboriginal). Given the current focus on resource development by the Government of Canada, it is not unreasonable to conclude that the governmental initiatives discussed in this paper further silence the people who are most affected by resource development. Finally, the rhetoric behind the Canadian ‘Responsible Resource Development’ (particularly when applied in the context of northern Ontario) ends up benefiting only a few developers and shareholders living thousands of miles away from where resource development occurs and affect local communities, while the risks and potential adverse impacts and risks are left to local communities living in these remote areas.

Acknowledgements

The authors would like to thank the IAPA editors and reviewers for many valuable suggestions.

Additional information

Funding

This work was supported by the Social Sciences and Humanities Research Council.

Notes

^1. The Ring of Fire is considered one of the most promising mineral development opportunities in northern Ontario, with current estimates suggesting a multi-generational potential of chromite production, as well as significant production of nickel, copper and platinum (Ministry of Northern Development and Mines [MNDM] 2014).

^2. Surrendered lands means an Aboriginal reserve or part of a reserve that has been released or surrendered by the band for whose use and benefit it was set apart (Indian Act1985). While the initial intent was to ensure protection, for the most part, ‘reserve land has been surrendered in response to the settlement and development aspirations of non-Aboriginal peoples’ (Holmes 2006, p. 4).

^3. Recipients of this type of assistance can use funds for a number of things related to the proposed project under review, including collecting data and conducting research, preparing and participating in scoping activities, hiring experts to help review the EA findings in the EA report, and also to get ready and participate in public hearings.